Swanson v. Village of Lake in the Hills

• Decision Date: 14 August 1992
• Docket Number: No. 2-91-1260,2-91-1260
• Citation: 598 N.E.2d 430,233 Ill.App.3d 58
• Parties: , 174 Ill.Dec. 233 Paul D. SWANSON, Plaintiff-Appellant and Cross-Appellee, v. The VILLAGE OF LAKE IN THE HILLS, Defendant-Appellee and Cross-Appellant.
• Court: United States Appellate Court of Illinois

Page 430

598 N.E.2d 430

233 Ill.App.3d 58, 174 Ill.Dec. 233

Paul D. SWANSON, Plaintiff-Appellant and Cross-Appellee, v. The VILLAGE OF LAKE IN THE HILLS, Defendant-Appellee and Cross-Appellant.

No. 2-91-1260.

Appellate Court of Illinois Second District.

Aug. 14, 1992.

[233 Ill.App.3d 59] [174 Ill.Dec. 234] Michael K. Havrilesko, Havrilesko & Associates, Rockford, for Paul D. Swanson.

Dolores A. Duffy, Zukowski, Rogers, Flood & McArdle, Crystal Lake, for Village of Lake In The Hills.

Presiding Justice INGLIS delivered the opinion of the court:

Plaintiff, Paul D. Swanson, brought an action in November 1987 against his employer, Village of Lake in the Hills (defendant), for accrued vacation pay pursuant to the Wage Payment and Collection Act (Ill.Rev.Stat.1987, ch. 48, par. 39m-5), disability pay pursuant to the Public Employee Disability Act (Ill.Rev.Stat.1987, ch. 70, par. 91) and attorney fees pursuant to the Attorneys Fees in Wage Actions Act (Ill.Rev.Stat.1987, ch. 13, par. 13). The trial court held that defendant owed plaintiff $1,806.25 in accrued vacation pay and $3,103.02 in disability pay, but denied plaintiff's request for attorney fees.

Plaintiff appealed the trial court's denial of attorney fees, and defendant cross-appealed the trial court's award of vacation and disability pay. Three issues are therefore raised: (1) whether the trial court erred in awarding plaintiff $1,806.25 in accrued vacation pay; (2) whether the trial court erred in awarding plaintiff $3,103.02 in disability pay; and (3) whether the trial court erred in denying plaintiff's request for statutory attorney fees. We affirm.

A one-day bench trial took place on January 14, 1991, during which five witnesses testified. The following is a summary of the evidence and testimony. Plaintiff was employed by defendant as a police officer from December 1978 until January 31, 1987, when he was terminated. On August 24, 1986, plaintiff was treated at the Good Shepherd Hospital emergency room in Barrington for a severe headache, associated with nausea, vomiting and passing out. Dr. Zbigniew Lorenc treated and interviewed plaintiff. Plaintiff told Dr. Lorenc that for several months he had had substantial difficulties with his immediate supervisor at work and that he was experiencing severe stress and headaches as a result of his work. Dr. Lorenc diagnosed plaintiff as suffering from severe muscle contraction headaches. Various tests ordered by Lorenc, such as blood tests, a CAT scan of the brain, and X rays of the neck, sinuses and facial bone, revealed no other probable causes for the headaches. Plaintiff was also treated by Dr. Greek, a neurologist, who ordered a cerebral angiogram to rule out aneurysms as a cause. Dr. Lorenc prescribed an analgesic medication and physical therapy during plaintiff's four-day hospitalization and for several weeks thereafter.

Dr. Lorenc testified that when plaintiff was hospitalized, he was clearly disabled. Lorenc ordered plaintiff to refrain from work until December 2, 1986. During the time that plaintiff was off work, Lorenc stated that plaintiff's headaches diminished and became more tolerable. On October 2, 1986, Lorenc authored a letter advising that plaintiff could return to work on either December 1, 1986, or January 1, 1987.

According to Dr. Lorenc, muscle contraction headaches are usually supported with physical findings. Lorenc also stated that the more intense the headache, the more physical findings are present. Lorenc stated that he made physical findings as to plaintiff which are typical of severe headaches, including tight tender muscles in the back of the neck, back of the head and along the temples, and great deprivation of sleep.

Plaintiff attempted to return to his work as a police officer on December 2, 1986. Dr. Lorenc testified that upon returning to his work plaintiff's headaches recurred and became "very intense." According to Lorenc, plaintiff suffered recurrence of "significant spasm in his muscles in the back of his head [and] neck."

Dr. Lorenc concluded that plaintiff had fairly tried to return to work, but that his returning to the work environment exacerbated plaintiff's headaches such that "he could not perform his police duties." Lorenc opined that plaintiff's return to work "brought [his headaches] almost to the same level as they were prior to his hospitalization in August." Lorenc further opined that returning plaintiff to the work place under the circumstances would be detrimental to plaintiff's health.

Dr. Lorenc testified that, in his medical opinion, he "felt very strongly" that plaintiff's headaches were causally related to his employment: that the headaches were intense; that when he was ordered off work, his headaches gradually subsided over time; that when he returned to work, his headaches markedly increased; and when he was off police work the second time, and worked as a carpenter, his headaches again subsided. Lorenc testified that an injury does not necessarily result from physical trauma, but may result from other causes such as mental abuse. He opined that plaintiff's headaches resulted from mental abuse at work.

Dr. Lorenc opined that, to a reasonable degree of medical certainty, the following circumstances surrounding plaintiff's employment as a police officer were causally related to plaintiff's headaches: his suspension from employment based on the death of a prisoner; thereafter receiving punitive or demeaning duties and frequent criticism from his superior, the chief of police; his experiencing headaches when confronted by his superior in the work place; an internal investigation of his culpability in the prisoner's death; involvement in a dangerous cross-fire situation; experiencing headaches during the cross-fire situation and thereafter being hospitalized with headaches.

Plaintiff's testimony paralleled that of Dr. Lorenc. Plaintiff was earning $495 per week as a Village police officer at the time in question. Plaintiff testified that, at some point after he was terminated in January 1987, he made a request in writing to defendant for payment of his accrued vacation pay. Plaintiff did not introduce a copy of this alleged letter into evidence. In a written response dated March 3, 1987, defendant agreed that plaintiff had accrued 18 vacation days at the time of his termination in January 1987. However, defendant stated that plaintiff's vacation pay was offset by 18 days of administrative leave he received from December 2 through December 20, 1986. Defendant's letter concluded that "it would appear that you neither owe the Village nor the Village owes you any money."

A copy of defendant's personnel rules was introduced into evidence. A section on termination reads, in pertinent part: "Upon termination of employment, the employee shall be paid for any unused vacation time."

Plaintiff testified that in March 1987 he wrote a letter to the Department of Labor (Department) requesting payment of his accrued vacation pay and $900 in disability compensation from defendant. However, plaintiff did not introduce a copy of this letter into evidence. The Department of Labor sent plaintiff a letter dated March 26, 1987, stating that the Department had received plaintiff's letter and forwarded the claim to defendant for a response. On May 11, 1987, the Department sent plaintiff another letter and a copy of defendant's response to plaintiff's claims. Defendant's response acknowledged receipt of plaintiff's claim. However, defendant claimed that plaintiff's 18 days of accrued vacation time was credited against an overpayment of 18 days. The response generally denied defendant's claims. Plaintiff stated that he filed a reply to defendant's response, asking the Department to "take steps within your means to see that the Village of Lake in the Hills pays me the salary that they agreed to pay me, and * * * vacation benefits." A copy of this undated letter was introduced into evidence.

Plaintiff also testified that in January 1987 his attorney at the time sent defendant a written demand for vacation and disability pay. Plaintiff did not introduce a copy of this alleged letter into evidence. Defendant responded to plaintiff's claim for disability pay in a letter dated February 6, 1987, and to plaintiff's claim for vacation pay in a letter dated February 19, 1987. Both letters denied plaintiff's claims.

By written stipulation of the parties, plaintiff began working as a carpenter for Welcome Home Corporation on or about December 8, 1986.

The three remaining witnesses testified as follows. Deborah Tipps, a supervisor at Aetna Insurance, testified that plaintiff was on 60% disability pay from August 31, 1986, through February 23, 1987. Wendy Cichowski, defendant's treasurer, identified copies of payroll checks made out to plaintiff for October and December 1986.

James A. Wales, defendant's chief of police, testified that he ordered plaintiff to undergo a psychological evaluation on December 2, 1986, to determine his fitness for duty. Wales based this order on a statement plaintiff made at an administrative hearing conducted by Wales in August 1986, the topic of which was plaintiff's conduct during a police response to a shooting incident. Plaintiff had stated there that during the incident he was unsure how he might react and believed that "he was walking on eggshells." Pending receipt of the psychological evaluation, Wales placed plaintiff on administrative leave. Wales received the evaluation on December 20, at which time he filed termination charges with the police commission. As a result and on that same day, the commission suspended plaintiff without pay for 30 days pending a hearing on the matter. One month later, the commission suspended plaintiff for another 30 days, but with pay, pending completion of the hearing. On January 31, 1987, the police commission terminated plaintiff's employment as a police officer. On cross-examination, Wales...